No. 1-01-0228

First Division
March 29, 2002

PRESIDING JUSTICE COHEN delivered the opinion of the court:

Plaintiff suffered extensive injuries following an explosion at Lindy's Chili Parlor. Plaintifffiled a complaint alleging negligence against 5401 S.P. Inc., a corporation doing business as Lindy'sChili Parlor (hereafter, the corporation), and against Michael McClory, a part owner of thecorporation and bartender at Lindy's. Following a trial, the jury returned a verdict in favor ofplaintiff, awarding $861,111.23 in damages, reduced by 10% to $782,200 to reflect plaintiff'scomparative negligence. Defendants then brought a motion for judgment notwithstanding theverdict, which the trial court denied. Defendants appeal, arguing that the trial court erred by: (1) notentering judgment notwithstanding the verdict because plaintiff failed to establish either a duty owedby defendants or that defendants' acts proximately caused plaintiff's injuries; (2) allowing evidenceand argument related to alcohol consumption and intoxication; and (3) refusing to instruct the juryto apportion negligence among plaintiff, the corporation, McClory, and "Person X," an unidentifiedperson who was not a party to the lawsuit. For the following reasons, we affirm.

BACKGROUND

Plaintiff testified at trial that he was employed as a locomotive engineer for the Norfolk andSouthern Railroad Corporation on the date of the accident. Plaintiff's position required him to travelby freight train from Fort Wayne, Indiana, to Chicago, Illinois. Upon plaintiff's arrival in Chicago,a company bus would transport plaintiff from the train yard to the Rolling Wheels Motel. Onceplaintiff arrived at the Rolling Wheels Motel, he would then contact a company dispatcher whowould inform plaintiff of the time of plaintiff's expected return to Fort Wayne.

On June 13, 1996, plaintiff arrived in Chicago and was transported to the Rolling WheelsMotel. As was his custom, plaintiff walked from the motel to Lindy's Chili Parlor. Lindy's isdivided into two sections with a family-style restaurant on one side and a bar on the other side. Plaintiff testified that he arrived at Lindy's and entered the bar area around 11:30 a.m. Plaintiffwalked to a barstool near the front of the bar where he remained standing until the occurrence tookplace. Plaintiff's coworker, Ron "Rondo" Martineck, and Rondo's brother Bobby arrived around 2:30p.m. Rondo stood to plaintiff's right. Bobby, confined to a wheelchair, was also located to plaintiff'sright. James Trahin, Jr., another of plaintiff's coworkers, arrived sometime later and stood toplaintiff's left.

Plaintiff further testified that Mike McClory, a bartender and co-owner of Lindy's, was notpresent when plaintiff first arrived. McClory arrived later, entering through a door at the back of thebar. McClory spoke with different people as he proceeded down the length of the bar, finallyapproaching plaintiff. According to plaintiff, when McClory reached the place where plaintiff wasstanding, McClory placed an object, which plaintiff later identified as an "M-80," on the bar in frontof plaintiff and said, "Here, you can have this." Plaintiff testified:

"I looked down at it, and I don't do well in the-it's a littledarker there. I don't have my glasses with me. I looked at it. Icouldn't exactly tell what it was, so I picked it up and held it up to thelight, which the front is-has a lot of windows, has more light comingin. So I held it up to see what-what exactly that was.

* * *

As I was looking at it, I seen a hand come with a lit lighter andlight the fuse."

Plaintiff testified that the hand that lit the fuse came from the left front of plaintiff, but he didnot know to whom the hand belonged. Plaintiff, shocked that someone had lit the fuse, ran towardthe front door of the bar while trying to extinguish the fuse of the M-80 on his pant leg. Plaintiffexited through an interior door, opened an exterior door, and "tried to underhand pitch the M-80 outup against the building by the sidewalk." The M-80, however, exploded before plaintiff couldrelease it, causing serious injuries to his hand, stomach and thigh. Plaintiff testified that he did notlight the M-80 and did not know who lit it. Plaintiff had some experience with M-80s at least 10 to15 years prior to the incident at Lindy's and knew an M-80 explodes about five seconds after thewick is lit and has a "pretty powerful explosion."

Plaintiff's counsel called McClory as an adverse witness. McClory testified that he arrivedat Lindy's around 4 p.m. on the day of the explosion and observed a group of patrons near the backof the bar passing an object back and forth. According to McClory, someone in the group at the backof the bar either dropped the object or placed it on the bar and McClory picked the object up. McClory initially testified that he was not sure whether the object was an explosive device, butadmitted that he "had an idea that it may be some type of firework." McClory also admitted thatduring his deposition he had testified that he remembered "seeing an M-80" five minutes prior to theexplosion. According to McClory, the device was "red, about an inch or more high, with a wick"and was one-half inch in diameter. McClory testified that he picked up the explosive and asked"who it belonged to." McClory believed that someone had gestured in the direction of plaintiff, soMcClory placed the explosive on the bar in front of plaintiff.

Plaintiff's counsel then questioned McClory regarding alcohol consumption as follows:

"Q. You knew that people were drinking in the bar, correct?

A. Yes, correct.

Q. You knew that people were smoking in the bar, correct?

A. Correct.

Q. You know that patrons often consume a little bit too much alcohol in the bar; isthat correct?"

Defense counsel objected and moved for a mistrial, arguing that there was no supportingevidence of intoxication. Plaintiff's counsel argued that the testimony he sought to elicit "goes tothe foreseeability and the knowledge of the defendant of placing an explosive device on a bar wherehe knows people are drinking and sometimes drink too much." The trial judge overruled defensecounsel's objection and denied the motion for a mistrial. McClory then further testified as follows:

"A. I know that it does happen from time to time, sure.

Q. And you know that it does happen at Lindy's Chili Parlor, correct?

A. To the best of my ability, I try not to allow that to happen.

Q. But prior to June 13, 1996, there are occasions where you have observed peopleconsuming more alcohol than they should?

A. If I observe anybody that doesn't look like they should be drinking, theyare asked to leave.

Q. Have you on occasion, though, seen people drinking where you have hadto ask them to leave?

A. Correct.

Q. And you don't know how much people had been drinking before youarrived on June 13th?

A. Positively not."

Upon cross-examination by defense counsel, McClory testified that, having just arrived, hehad no way of knowing whether anyone in Lindy's was intoxicated at the time of the occurrence andthat, from his experience, he would not expect to see people intoxicated at Lindy's at 4:30 in theafternoon. Finally, McClory testified that "the bar is, for the most part, pretty dimly lit."

Plaintiff next called James Trahin as a witness. Trahin was employed as a dispatcher forNorfolk Southern Railroad Corporation at the time of the occurrence. Trahin testified that he arrivedat Lindy's between 3 and 4 p.m. and joined plaintiff, "Rondo" and Bobby at the bar. Trahin orderedsome food from McClory. While waiting for his order, Trahin saw McClory reach underneath thebar, grab what turned out to be the explosive, and bring it to the end of the bar where Trahin andplaintiff stood. According to Trahin, plaintiff neither asked nor gestured to McClory to place theexplosive on the bar.

Trahin testified that the explosive was "about five inches tall. When it was put on the barit was standing on end, circular." Trahin commented that the explosive "looked like a candle, hada wick off the top. It's red with like a clear wax in the middle of it where the wick was." Trahin waswatching McClory to see whether he was bringing Trahin's food order when Trahin heard thefizzling of the lit wick. Trahin testified that he had left his lighter and cigarettes on the bar but couldnot find the lighter when he left after the explosion. Plaintiff's counsel asked if Trahin had ever seenintoxicated persons in Lindy's bar. Defendants' objection to this question was sustained.

Following the close of evidence, defendants moved for a directed verdict arguing that: (1)any negligence by defendants was a condition rather than a cause of plaintiff's injuries; (2) thelighting of the wick was an intervening cause of plaintiff's injuries; and (3) plaintiff failed to provethat McClory provided the firecracker. The trial court denied the motion for directed verdict.

Plaintiff was permitted to reopen his case and call Rigoberto Gonzalez as a witness. Gonzalez testified that he had seen an explosive device being passed around by patrons at Lindy'son June 12, 1996, the day before plaintiff was injured. The explosive Gonzalez observed was "red,about one inch and a half diameter. It was like a quarter size." Gonzalez did not know whether thiswas the same explosive that injured plaintiff on June 13.

The parties again rested. In closing argument, plaintiff's counsel made the followingcomments:

"Michael McClory * * * is the one who created the dangerouscondition. He took an illegal explosive and he placed it on the bar. He could have removed it as soon as he picked it up. He could havestored it somewhere where no one had access to it. He could havecalled the police. He could have done any number of things otherthan place it on the bar so that people who were smoking anddrinking had access to it.

* * *

In our experience in life, we know that bars can be dangerous places. We know that people who have been drinking can do silly things. Weknow that bars are not appropriate places for explosives.

* * *

Mr. McClory during his testimony admitted, reluctantly, that peoplesometimes drink too much in a bar. We all know that. Peoplesometimes drink -"

This last comment drew an objection from defense counsel, which the trial court sustained. Plaintiff's counsel concluded:

"No reasonable person would walk into a restaurant or bar if theyknew that there were people in there passing around explosives. Noreasonable person would walk into a restaurant or a bar if they knewthat there were explosives being handled by people who weresmoking and drinking. No reasonable person would bring theirchildren into an ice cream parlor if they knew that adjacent to that icecream parlor people were smoking, drinking, and passing aroundhigh-powered explosives."

In his rebuttal argument, plaintiff's counsel further argued that there was "nothing to explainwhy [McClory] put [the explosive] on the bar in an area where people had been drinking andsmoking even though he knew and even though he admitted, reluctantly, that people in that baroccasionally drink too much." Defense counsel objected: "Objection, your Honor-No. Objectionto Counsel's own testimony about that." The trial court sustained this objection and instructed thejury as follows:

"Ladies and gentlemen, what the attorneys say is not [sic] argument. It's not to be taken as evidence. If any statement or remark by anattorney has no basis in the evidence, then you should disregard thatstatement, argument or remark."

Plaintiff tendered a jury instruction and accompanying verdict forms which required the juryto determine the percentage of negligence attributable to plaintiff, assuming that 100% represented"the total combined negligence of all persons whose negligence proximately contributed to theplaintiff's injuries and damages, including" plaintiff, McClory and the corporation. Defendantstendered a jury instruction and accompanying verdict forms which would have required the jury todetermine the percentage of negligence attributable to: (1) plaintiff; (2) the corporation; (3) McClory;and (4) "Person X," the unidentified individual who lit the fuse. The instruction tendered bydefendants was refused and the instruction tendered by plaintiff was submitted to the jury.

The jury returned a verdict in favor of plaintiff in the amount of $869,111.23. The jury foundplaintiff 10% comparatively negligent and reduced the damage award to $782,200.11. Defendantsmoved for judgment notwithstanding the verdict, arguing that plaintiff failed to establish proximatecause and failed to establish that defendants owed him a duty. Defendants also moved for a newtrial, arguing that: (1) the jury's verdict was against the manifest weight of the evidence; (2) theadmission of evidence relating to alcohol consumption was prejudicial error; and (3) the trial courterred in refusing defendants' tendered jury instruction. The motions were denied and defendants nowappeal.

ANALYSIS

I. Judgment Notwithstanding the Verdict

Defendants first argue that the trial court erred in denying their motion for judgmentnotwithstanding the verdict. Judgment notwithstanding the verdict is properly granted where all ofthe evidence, viewed in the light most favorable to the nonmovant, so overwhelmingly favors themovant that no contrary verdict based on the evidence could ever stand. Pedrick v. Peoria &Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). We review decisions on motions for judgmentnotwithstanding the verdict de novo. McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102,132 (1999). Defendants argue that they were entitled to judgment notwithstanding the verdictbecause plaintiffs could not establish either the existence of a duty or that defendants' conductproximately caused plaintiff's injury. Each of these arguments is premised on the contention that theinjury to plaintiff was not reasonably foreseeable.

In addressing defendants' arguments, we are mindful that "the case law is less than perfectlylucid or consistent in its treatment of the densely intertwined ideas of duty, proximate causation, andreasonable foreseeability." Colonial Inn Motor Lodge, Inc. v. Gay, 288 Ill. App. 3d 32, 41 (1997). "Although 'reasonable foreseeability' is crucial to both duty andproximate cause, courts must take care to keep duty and proximatecause analytically independent by differentiating between 'two distinctproblems in negligence theory-the unforeseen plaintiff problem andthe problem of the foreseeable injury resulting from unforeseenmeans.'" Gay, 288 Ill. App. 3d at 41.

Thus, a finding that a defendant owed a duty to a plaintiff depends on the reasonable foreseeabilityof an injury to the particular plaintiff. Gay, 288 Ill. App. 3d at 40. By contrast, a finding that adefendant's conduct proximately caused a plaintiff's injury depends on the reasonable foreseeabilityof the type of injury sustained by the plaintiff. Gay, 288 Ill. App. 3d at 43. With these principlesin mind, we consider defendants' arguments.A. Duty

Where a plaintiff obtains a verdict against a defendant based on negligence, judgmentnotwithstanding the verdict is required if the defendant did not owe the plaintiff a duty. Washingtonv. City of Chicago, 188 Ill. 2d 235, 239 (1999). Whether a duty exists is a question of law. Hillsv. Bridgeview Little League Ass'n, 195 Ill. 2d 210, 228 (2000). To determine whether a duty exists,the court must consider the following factors: (1) the reasonable foreseeability of the injury; (2) thelikelihood of injury; (3) the magnitude of the burden of guarding against the injury; and (4) theconsequences of placing that burden on defendant. Pullia v. Builders Square, Inc., 265 Ill. App.3d 933, 936-37 (1994). Finally, the existence of a duty turns in large part on public policyconsiderations. Pullia, 265 Ill. App. 3d at 941.

Defendants argue that they owed no duty to protect plaintiff in the instant case becauseordinarily a possessor of land has no duty to protect lawful entrants from the criminal acts of thirdparties (Hills, 195 Ill. 2d at 242). In Illinois, a possessor of land has a duty to protect entrants fromcriminal attacks only where: (1) the landowner and entrant stand in a special relationship to oneanother; and (2) the criminal attack was reasonably foreseeable. Hills, 195 Ill. 2d at 243.

In their brief, defendants argue that the "person who lit the M-80 inside Lindy's committedassault and battery. [Citation.] Assault and battery with an explosive device is statutory [sic] definedas heinous battery." Section 12-3(a) of the Criminal Code of 1961 (Criminal Code) provides:

"A person commits battery if he intentionally or knowingly withoutlegal justification and by any means, (1) causes bodily harm to anindividual or (2) makes physical contact of an insulting or provokingnature with an individual." (Emphasis added.) 720 ILCS 5/12-3(a)(West 1996).

Section 12-4.1(a) of the Criminal Code provides, in relevant part:

"A person who, in committing a battery, knowingly causes severe andpermanent disability, great bodily harm or disfigurement by means of* * * a bomb or explosive compound commits heinous battery." (Emphasis added.) 720 ILCS 5/12-4.1(a) (West 2000).

Defendants further argue that lighting the M-80 inside Lindy's was a "flagrant violation of theFireworks Use Act." Section 2 of the Fireworks Use Act provides in relevant part that "it shall beunlawful for any person * * * to knowingly possess, * * * use or explode any fireworks." (Emphasisadded.) 425 ILCS 35/2 (West 1996). Unlawful use or explosion of fireworks is a Class Bmisdemeanor. 425 ILCS 35/5(a) (West 1996). Possession of fireworks may be a petty offense, aClass B misdemeanor, or a Class A misdemeanor, depending upon the weight of the fireworks. 425ILCS 35/5(b) (West 1996). To establish either a battery or a heinous battery, the plain language ofthe Criminal Code explicitly requires proof of the actor's knowledge and intent. 720 ILCS 5/12-3(a),(West 1996); 720 ILCS 5/12--4.1(a) (West 2000). Similarly, section 2 of the Fireworks Use Act(425 ILCS 35/2 (West 1996)) explicitly requires proof of the actor's knowledge.

Defendants argue that the level of concentration required to match up the flame of a lighterto the wick of the explosive is sufficient to establish intent. Although the evidence may in factsupport a finding that the unidentified individual intentionally lit the wick, no evidence waspresented that the unidentified individual knew or should have known that the object held by plaintiffwas an explosive device. Indeed, Trahin testified that the explosive looked like a candle with waxaround the wick. Plaintiff testified that, because it was dark in the bar, he could not initially tell whatthe object was and had to hold it up to the light to get a better look. Even McClory initially testifiedthat he could not tell exactly what the object was. In light of this evidence, any conclusion thatPerson X knew that the object was an explosive would be pure speculation. Consequently, theevidence does not support a finding that Person X knew that lighting the wick would cause "severeand permanent disability, great bodily harm or disfigurement by means of * * * [an] explosivecompound" (720 ILCS 5/12-4.1(a) (West 2000))⁽¹⁾.

Defendants also argue that Person X violated section 15-20-220 of the Chicago MunicipalCode, which provides in relevant part that "[n]o person shall have, keep, store, use, manufacture,assemble, mix, sell, handle or transport any fireworks." Chicago Municipal Code